[Probation is] like a prison sentence outside of jail. You walk around with a rope tied around your leg to the prison door. Anything can lead to revocation.
–James Yancey, Georgia defense attorney

I asked for programs but . . . [probation] didn’t want to hear that I need help; they just gave me time.
–Monique Taylor (pseudonym), who has served years on probation in Pennsylvania for conduct related to a long-standing drug dependence

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people—or one in every 55—were under supervision. Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades, arbitrary and overly harsh supervision regimes have led people back into US jails and prisons—feeding mass incarceration. According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation. This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent. A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations—but is limited to state prison populations—shows that 45 percent of all US state prison admissions stemmed from probation and parole violations. These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data. Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison—feeding mass incarceration rather than curtailing it. The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations. This report focuses on three states where our initial research indicated that—despite some reforms—the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration. These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.

The report shows that, nationwide, most people locked up for supervision violations were not convicted of new offenses—rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs. Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting. The distinction between “rule” and “new offense” violations is sometimes blurry, as some jurisdictions do not track whether people incarcerated for rule violations also had pending criminal charges, though some data that we obtained and analyzed for this report did not have this issue.

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias. The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it.

In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

There is a better way forward. States around the country are enacting reforms to reduce the burdens of supervision, while investing in community-based services. Human Rights Watch and the ACLU urge governments to build on this momentum, and divest from arrests and incarceration for supervision violations while investing in increasing access to jobs, housing, social services, and voluntary, community-based substance use disorder treatment and mental health services—services that have a record of improving public safety and that strengthen people and their communities.

Set Up to Fail

People under supervision, lawyers, and even some judges and former supervision officers recognize that supervision often sets people up to fail. People must comply with an array of wide-ranging, sometimes vague, and hard-to-follow rules, including rules requiring them to pay steep fines and fees, attend frequent meetings, abstain from drugs and alcohol, and report any time they change housing or employment.

People must follow these rules for a long period of time. While numerous experts agree that supervision terms should last only a couple of years, many states allow probation sentences of up to five years. In states including Wisconsin, Pennsylvania, and Georgia, probation terms can be as long as the maximum sentence for the underlying offense, in some cases 10 or 20 years, or even life—and consequences for failing are severe.

Navigating supervision is difficult and in many cases not possible without money, reliable transportation, stable housing, and access to health services. Yet few people under supervision have these resources—and supervision departments are in many cases failing to provide them. “They just gave us a sentence and put us on the street with nothing and expect us to follow rules and make stuff happen,” a man incarcerated for violations in Wisconsin told us. A young mother in Pennsylvania, who had long struggled with substance use disorder, explained, “I asked for programs but . . . [probation] didn’t want to hear that I need help; they just gave me time.”

Many supervision officers interviewed for this report said that they regularly connect people with services, and that re-entry resources have increased in recent years. Yet even more officers we spoke to, and several judges, said that they wished they had more resources. Some people under supervision that we interviewed did report that certain programs were helpful, but the vast majority did not feel that way.

Conduct Triggering Violations

Supervision officers say they generally give people multiple chances before pursuing revocation. But the root causes of the violations, discussed below, often go unaddressed. It is thus no surprise that many people continually engage in the same prohibited behavior, ultimately leading to incarceration—even for minor conduct.

According to our data analysis, the most common rule violations that trigger incarceration in Wisconsin are using drugs and consuming alcohol or entering bars. In Pennsylvania, state parole violations largely result from people failing to report address changes and using drugs. Anecdotal evidence from Georgia (state authorities in Georgia said they could not provide the data sought) suggests that failing to report address changes and drug use are likewise driving incarceration there.

Data from Wisconsin reveal that where new offenses, as opposed to rule violations, led to violation proceedings, the vast majority were for public order offenses like disorderly conduct or resisting arrest, misdemeanor assaultive conduct, shoplifting, and drug offenses. Anecdotal evidence from Georgia and Pennsylvania showed similar trends. If drug offense arrests in these states are consistent with national arrest data, then the overwhelming majority of such drug offenses are for nothing more than possessing drugs for personal use—conduct that Human Rights Watch and the ACLU believe should not be criminalized. Our report also raises concerns about the handling of supervision violations across the board, including those that stem from serious violent conduct.

Few Procedural Protections, Disproportionate Penalties

Basic rights in criminal proceedings, such as the exclusion of illegally obtained evidence and burden of proof beyond a reasonable doubt, generally do not apply during “revocation hearings,” which determine whether someone violated their supervision conditions and the appropriate punishment. Many jurisdictions also limit access to lawyers for revocation proceedings.

In states such as Pennsylvania, Wisconsin, and Georgia, people are generally incarcerated while they fight revocation, even for minor violations. Detention in parts of these states regularly lasts for months before any hearing, in violation of international human rights standards. Sometimes detention occurs in jails that are overcrowded, unsanitary, and lack adequate mental health services or access to effective drug treatment, and where staff have been accused of mismanagement and violence. These circumstances place immense pressure on people to admit to the violations in the hope they can then get out of jail.

Violations often lead to harsh penalties. In our focus states, many people are sentenced to prison-based treatment programs or additional supervision, keeping them under correctional control—at risk of more imprisonment for any slip-up—for years or decades. Other people receive disproportionately severe incarceration terms.

Feeding Mass Incarceration

Currently, supervision is feeding mass incarceration in the United States. In 20 states, more than half of all state prison admissions in 2017 stemmed from supervision violations. In six states—Utah, Montana, Wisconsin, Idaho, Kansas, and South Dakota—violations made up more than two-thirds of state prison admissions.

In many states, admissions for supervision violations are rising even as prison populations are otherwise falling. For instance, from 2008 to 2018, Pennsylvania reduced prison admissions for conduct other than parole violations by 21 percent, while admissions from parole violations grew by 40 percent.

Nationwide, most people incarcerated for supervision violations were locked up for violating supervision rules, not new convictions—though, in the states where we focused our research, we document problems with how violations for new offenses are handled as well.

In Wisconsin from 2017 to 2019, rule violations accounted for more than 61 percent of all supervision sanctions. In Pennsylvania, rule violations comprised 41 percent of prison admissions for state parole violations and 78 percent of probation revocations from 2016 to 2019. We were only able to obtain limited data for Georgia.

Black, Latinx, and Indigenous people are disproportionately incarcerated for violations. For instance, in Wisconsin, the proportion of Native Americans sanctioned for violations is seven times higher than their proportion of the state population; for Black people, it is four times their proportion of the population.

Rooted in Disadvantage

Our research demonstrates that violations often stem from disadvantage. Many people cannot afford to pay their supervision fees or other court costs while supporting themselves and their families. As a result, people often do not make their required payments. While the US Supreme Court forbids courts from jailing people solely because they are poor, judges often fail to adequately assess whether someone can pay. Additionally, many people we interviewed said they stopped reporting to supervision because they did not have the money to pay their required fees for supervision or program requirements, eventually leading to violation proceedings for failure to report.

Many people we interviewed also said that the lack of stable housing impeded their ability to comply with supervision conditions. Housing instability and homelessness often contribute to physical and mental health issues, making it harder for people to hold down jobs, attend supervision-mandated meetings, and regularly update their supervision officer on where they live.

Further, people under correctional control are disproportionately likely to have mental health conditions, which can create added barriers to navigating supervision. Meanwhile, many communities lack accessible, voluntary mental health services and treatment options.

High numbers of people are incarcerated for using drugs, including people who are struggling with substance use disorder. Many judges and supervision officers we spoke to argue that jailing people is necessary to stop them from harming themselves or others. But incarceration is, per se, a disproportionate response to personal drug use. It’s also ineffectual public health policy; health experts largely disagree that incarceration helps people recover from substance use disorder. Rather, they assert, governments should invest in voluntary, community-based, harm-reduction services and evidence-based treatment, such as Medication-Assisted Treatment and programs that do not mandate abstinence, since relapse is a normal and expected part of recovery.

Racial bias plays an outsized role in supervision violations. Generations of ongoing systemic discrimination throughout the United States have left Black and brown people less likely to have resources that make navigating supervision feasible, such as financial security, stable housing, reliable transportation, and access to drug treatment and mental health services, compared to their white counterparts. When Black people violate conditions, studies show they are more likely to face sanctions.

Meanwhile, studies show that police disproportionately stop, search, and arrest Black and brown people—making it more likely that they will be arrested in the first place and later be deemed in violation of supervision terms. Nationwide, Black drivers are more likely to be pulled over and searched than white drivers, but less likely to be found with contraband. While Black and white adults use drugs at similar rates, nationwide Black adults are two-and-a-half times as likely as whites to be arrested for possessing drugs for personal use. Disparities are even starker in some places Human Rights Watch studied. In Milwaukee, Wisconsin, vehicle and pedestrian stop rates for Black people are five times what they are for white people.

In addition, many states, including Pennsylvania, Wisconsin, and Georgia, use risk assessment tools (RATs) to set conditions and sanctions, which studies show can disproportionately label Black and brown people “high risk”—triggering tougher levels of supervision and enforcement.

A man who pled guilty to a probation term in Georgia in the hopes of avoiding prison time—only to wind up jailed, once for failure to pay and another time for using and possessing drugs—told us, “[Probation] took all my money, kept me incarcerated for simple little mistakes. It’s really been a lot of pain.”

The Path Forward

While judges and prosecutors often argue that supervision provides them with an alternative to incarceration, supervision is also imposed in cases that otherwise may have triggered less severe sanctions. Regardless, in too many cases it leads people right back into jail and prison, particularly those with limited resources. And supervision is not necessary to prevent serious crime: most violations stem from rule violations and relatively minor offenses for which there is little or no evidence that incarceration enhances public safety or reduces recidivism.

Where people on supervision engage in serious crime, moreover, law enforcement already has mechanisms in place to arrest those allegedly responsible and file charges. In the jurisdictions we examined, pursuing supervision violations in addition to criminal prosecutions for the same conduct often subjects people to lengthier detention and more sanctions, in proceedings that fail to adequately protect their fair trial rights.

Many aspects of the supervision systems we documented violate US and international law, which bar disproportionate punishment, discrimination based on race, poverty, and disability, and arbitrary detention, and which require governments to protect the right to life of people in their custody, including by providing them with necessary medical care free of charge. Various practices we documented in revocation proceedings also raise serious fair trial concerns or are inconsistent with the rights under international law to an adequate standard of living, housing, food, health, and other basic needs.

Communities have an opportunity to choose a better path. In recent years, numerous states, including Georgia and Pennsylvania, have made positive reforms—shortening supervision terms, imposing less burdensome conditions, reducing incarceration for violations, and expanding community-based services.

Additionally, court systems are increasingly diverting people charged with certain crimes away from criminal prosecutions. Meanwhile, for certain behavior that causes harm, some communities are developing restorative justice processes, which aim to hold people accountable for their actions and support those who have been harmed but encourage measures like service in and for communities, restitution, and acknowledging and apologizing for wrongdoing, over incarceration as a solution.

Across the country, community-led organizations are helping to improve people’s access to re-entry supports and services. Many people on supervision credit these organizations—often which, unlike most supervision-mandated programs, use harm-reduction models and offer assistance without preconditions—with helping them get on the right path. But such programs are sorely underfunded, and non-existent in many, particularly rural, areas.

Human Rights Watch and the American Civil Liberties Union call on federal, state, and local governments to enact the following reforms to reduce the harms of supervision and help people access resources they want and need:
 

• Divest from probation, parole, and incarceration and invest in access to jobs, housing, education, and voluntary, community-based substance use disorder treatment and mental health services.
• Reduce the use of supervision sentences and instead impose true alternatives to incarceration, such as unconditional discharges or proportionate and flexible community service requirements.
• Where supervision terms are imposed, shorten the length of supervision terms, reduce the number and nature of conditions imposed, and strictly limit incarceration for violations, both before and following violation proceedings.

Most states place some limits on the lengths of probation terms, but some states place no such constraints – probation can be a few months, 20 years, or in some cases, life.